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Microsoft Patents Software Linux

Why Microsoft Won't List Claimed Patent Violations 626

Posted by kdawson from the only-stick-they've-got dept.
BlueOni0n writes "Earlier today, Microsoft announced it will begin actively seeking reparations for claimed patent infringement by Linux and the open source community in general. One opinion on why Microsoft won't reveal these 235 alleged IP infringements to the public is that they're afraid of having the claims debunked or challenged — so instead they're waiting until the OS community comes to the bargaining table. But a more optimistic thought is that Microsoft may be afraid to list these supposed violations because it knows the patents can be worked around by the open source community, leaving Microsoft high and dry without any leverage at all."
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Why Microsoft Won't List Claimed Patent Violations More

Why Microsoft Won't List Claimed Patent Violations

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  • Where's Novell? (Score:5, Interesting)

    by khasim ( 1285 ) <brandioch.conner@gmail.com> on Monday May 14, 2007 @07:22PM (#19123795)
    Didn't they claim (after they signed the agreement) that Linux did not have any patent issues with Microsoft?

    Where is their press release regarding this?

    • Where's the Cease and Desist? (Score:5, Interesting)

      by EnderWiggnz ( 39214 ) on Monday May 14, 2007 @07:33PM (#19123921)
      Where is the C&D from the FSF?

      If someone is making a dubious claim, slap them with a c&d, and force this thing into court.

      • Re:Where's the Cease and Desist? (Score:4, Funny)

        by fmarkham ( 1091529 ) on Monday May 14, 2007 @07:57PM (#19124229)
        In Soviet America, Microsoft slaps YOU.

      • Declaratory Judgement (Score:5, Insightful)

        by cpaluc ( 559921 ) on Monday May 14, 2007 @08:51PM (#19124691)
        Isn't it be possible to get some sort of declaratory judgement from a court? Say you're RedHat (or any other Linux distributor), who happens to sell Linux and related services - in light of MS's statements, wouldn't you be entitled to know which patents are involved? MS's statements have a direct impact on your business.

        And if MS refused to tell you then couldn't you get a declaration from a court that your product doesn't infringe? IIRC, this is similar to what RedHat is pursuing in its case against SCO (which is on hold while SCO v IBM drags on).

        Maybe a small Linux distributor with no assets and not much to lose could pursue a case like this against MS.

        • Re:Declaratory Judgement (Score:5, Informative)

          by bb5ch39t ( 786551 ) on Monday May 14, 2007 @08:58PM (#19124751)
          I think this is possible from something called "the Latham Act" which is about unsupported claims which can negatively impact a company's business.

        • Re:Declaratory Judgement (Score:5, Informative)

          by tyme ( 6621 ) on Monday May 14, 2007 @11:26PM (#19125869) Homepage Journal
          cpaluc [slashdot.org] wrote:

          Isn't it be possible to get some sort of declaratory judgement from a court? Say you're RedHat (or any other Linux distributor), who happens to sell Linux and related services - in light of MS's statements, wouldn't you be entitled to know which patents are involved? MS's statements have a direct impact on your business.

          And if MS refused to tell you then couldn't you get a declaration from a court that your product doesn't infringe? IIRC, this is similar to what RedHat is pursuing in its case against SCO (which is on hold while SCO v IBM drags on).

          Maybe a small Linux distributor with no assets and not much to lose could pursue a case like this against MS.


          First, any party bringing a lawsuit under the American legal system must have standing to sue, meaning that they must have a material interest in the outcome of the suit. Since Microsoft has not specifically threatened anybody, at the moment, it would be hard to establish standing. A really good lawyer might be able to argue that a Linux vendor is harmed by the implication that Microsoft will sue that vendors customers for patent infringement, but with any actual patent suits in process, it would be a hard sell.

          Second, the American legal system refuses to issue advisory judgements, and requires that a case be 'ripe' before it can be adjudicated. Since the court would be ruling on a hypothetical ("if Microsoft were to sue for patent infringement, would we be found to be infringing?") the court would (and should) simply refuse to hear the case.

          Here [lls.edu] is a good reference for standing, advisory opinions and ripeness. A little google-foo should easily turn up others.

          The only bright spot in this, from a potential plaintif's point of view, is that, as a convicted monopolist, there might be a way to accuse Microsoft of restrain-of-trade, or some other violation of the Sherman Act [stolaf.edu]. Unfortunately, I think that prosecution of anti-trust cases must be brought by the federal government, and that is not very likely with the current administration. Private actions can be brought for violations of the Clayton Act [stolaf.edu] but I don't quite see how it could aply in this case, and only consumers injured by their dealings with the violator have standing to sue, which puts most direct competitors out of the running.

          Disclaimer: IANALBIHTBL (IANAL But I Have Taken Business Law)

      • Re: (Score:3, Informative)

        by theonewho ( 686963 )
        IANAL IAHEP

        the lanham act (15 USC 1125) is intended to protect companies from assertions such as those that microsoft is making with respect to FOSS -- from http://en.wikipedia.org/wiki/Lanham_Act#Subchapter _III [wikipedia.org]:

        "Section 43(a)(1)(B) is also often utilized in law when false or misleading statements are alleged to have hurt a business. To be proven in court a claimant must satisfy 3 principles: There was a false or misleading statement made, the statement was used in commercial advertising or promotion, and

      • Re: (Score:3, Insightful)

        by PaulBu ( 473180 )
        Except that FSF has nothing to do with "Linux", while something to do with "GNU/Linux". I'm not making fun of them, but they can not go to court to protect something copyright to which was not transferred to them (read their plentiful "Hot to properly GPL your software" HOWTOs for some discussion of this exact issue) -- and I doubt that MSFT is after gcc or emacs, they are after "Linux" in general.

        Paul B.

        • Re: (Score:3, Informative)

          by HermMunster ( 972336 )
          Yes the FSF does have something to do with Linux as it isn't just the kernel that was called into question. Microsoft stated various and sundry products were in violation. If any of those are owned by the FSF they can and should force Microsoft to specifically state which patents are being violated by which products.

      • No FSF owned software has been challenged (Score:5, Interesting)

        by Per Abrahamsen ( 1397 ) on Tuesday May 15, 2007 @02:05AM (#19126859) Homepage
        Microsoft mentioned the Linux kernel proper, the "Linux GUI", and OpenOffice.org as the software in violation of Microsoft patents. None of these are owned by the FSF, and only Gnome (if that is what the "Linux GUI" refers to) is the only GNU project among them.

        There are two good reasons why no FSF owned code has been challenged:

        1) The FSF is a legal entity, and can actually defend itself. The FUD factor is much higher for the project with no/many owners. Who is going to stand up for them?

        2) The FSF is very careful about patents, it is quite common on the GCC list to see comments along the line of "the obvious technique for doing this is patented, but I found an alternative way to do it, so let's implement that". The core GCC developers seems to read patents in order to know what to avoid.

        The obvious exception seems to be OpenOffice.org which is owned by Sun, but Microsoft has a cross-license agreement with Sun (like most of the large technological companies has with each other), which may make it difficult for Sun to defend OpenOffice.org. After all, thanks to the cross-license agreement, Microsoft is not accusing Sun of any wrongdoing.

    • Re:Where's Novell? (Score:5, Insightful)

      by wall0159 ( 881759 ) on Monday May 14, 2007 @07:42PM (#19124023)

      The thing I think is interesting is MS's deal with Novell. If MS really had this big patent portfolio on which Linux was infringing, then Novell would have been in a very weak bargaining position.

      Instead we see the opposite - MS paid Novell a lot of money for that deal. To me this says that MS is full of shit, its patents are hollow (or uninfringed), and they were paying a lot of $$$ to Novell to try and add credence to their dubious claims.

      But what would I know - I'm just a hippy Linux user ;-)

      • Re:Where's Novell? (Score:5, Informative)

        by KarmaMB84 ( 743001 ) on Monday May 14, 2007 @08:22PM (#19124443)
        The deal required that Microsoft also had to pay royalties. Microsoft's revenues are MUCH higher than Novell's so they paid more than Novell paid them.

        • Re:Where's Novell? (Score:5, Interesting)

          by smilindog2000 ( 907665 ) <bill@billrocks.org> on Monday May 14, 2007 @08:38PM (#19124579) Homepage
          That makes sense... Bill Gates makes much more than me, so we should charge him $1,000 for a cup of coffee. Seems fair :-) In the real world, big companies typically pay less than small companies for the same service, and I bet Bill gets his coffee for free. Anyway, this just more M$ FUD, with no substance. The only people M$ will scare are the guys who actually pay for free software, so the rest of the world should more or less feel safe, especially outside the US where countries mostly recognize that software should not be patentable.

      • Barrel is smoking, feet are bloody (Score:5, Interesting)

        by WebCowboy ( 196209 ) on Monday May 14, 2007 @09:07PM (#19124841)
        If MS really had this big patent portfolio on which Linux was infringing, then Novell would have been in a very weak bargaining position.

        Both parties are in awkward positions, if pro-Free-software legal experts are correct in their interpretation of the MS-Novell agreement and the GPL.

        Increasingly it looks like the agreement will be in conflict with GPL3, and as software included in SLES migrates towards using GPL3 Novell will either have to freeze SLES at the last version of code relesed under GPL2 or somehow find their way out of the agreement to stay current.

        MS is in an awkward position because in their end of the deal they are obligated to sell SLES certificates. Technically they are now a Linux distributor. To sell a distribution you MUST abide by the GPL--even under GPL2 when you distribute GPL software you MUST make the source code available without restriction. It does not matter if the code implements a patented invention, MS could not charge a royalty/licensing fee to restrict use of the application or its source code without violating GPL. If MS is serious about trying to enforce its patents it must immediately terminate its agreement with Novell. GPL3 would not make the above situation any different for these existing patents from what I understand--what GPL3 does is keep authors of GPLed code from creating NEW patents based on the functionality of that GPLed code (could a lawyer out there tell me if that is a valid interpretation?).

        I'm not convinced MS will get very far with this latest cage-rattling. I suspect many of the involved patents are pretty dubious in nature--and some may be very old and could be close to expiration by the time litigation has finally reached a conclusion (another reason why they wouldn't pull a SCO and head into an embarrassing, protracted legal battle over IP). I also suspect that the Linux kernel itself violates few if any patents at all given how architecturally different it is from the Windows kernel. Microsoft would most likely go after the more outer layers of the OS onion--those involving interoperability with Windows. That is, after all, the stated focus of the MS-Novell deal.

        I think we'd first see action against Samba for example. Mono would've been a target as well, but the Novell agreement took care of that. Frontpage interoperability with Apache is another likely Free software target (I realise not all of their targets are GPL, though that is their prime concern). ODBC drivers that let Linux talk to Microsoft databases might be in the crosshairs. This strategy could be part of the "if you can't beat them, join them" plan: If Vista and the corresponding to-be-released server OS prove to be disappointments over the long term the Windows platform as it exists today may be allowed to wither and die on the vine, to be replaced with something more Linux-like (or perhaps BSD-like).

        If it does indeed "pull an Apple" and underpin its OS with such Free content it'll need a differentiator--and they intend that to be backwards compatibility with what will be "legacy Windows", which will also allow them to maintain their vendor lock-in. That key piece of the puzzle cannot be Free under the MSFT business model so the goal of more aggressively enforcing patents is likely to explore the feasibility of taking the "MSFT/Linux" or "BSD Windows" route whilst maintaining the leverage they enjoy as a monopoly.

        Their investment in "open source research" as of late has provided them with some ammunition, however I think they are still too clumsy with the gun and will only be able to shoot themselves in the foot with such a clumsy strategy. MS is resilient though, so I hope defenders of Free software can keep them off balance before they recover.

        • Re: (Score:3, Insightful)

          by moco ( 222985 )
          My interpretation was a bit simpler and probably wrong, but please play along.

          Someone high up at Microsoft has vowed to "f*cking kill linux". After long thought they decide that now is the time and that the best way to proceed is through patent lawsuits. This of course will anger the companies that have interest in linux and many of them hold their own patents which, by the nature of software patents, might or are infringed on by MS itself.

          Of all of the patent holders it was novell's paten

  • The big problem... (Score:4, Interesting)

    by Anonymous Coward on Monday May 14, 2007 @07:23PM (#19123801)
    You get the feel there's some sort of end-game being played out here, but it all started well before it became clear Vista was going to be a dog.

    The thing is, if Microsoft divulges what the FOSS patent breaches actually are, the community will respond promptly, and that particular bullet will have been fired. Until Microsoft's list is actually available, we don't know how much harm they'll be able to do, but there's not much chance they'll be able to inflict fatal damage to FOSS.

    This patent grab is essentially a one-shot hit, and until now, was always more valuable as a FUD threat than an actual tool of coercion. Micah hacks the computer system so Nathan can win. Peter controls the radiation power, and the ending is a cliffhanger into the next and final episode. That Microsoft is choosing to use it now is indicative that they believe it's value as FUD has waned, and I suspect that has more to do with the outcome of their their patent proxy SCO's efforts than with Vista's failure.
    • This is really about knocking back linux's control of the embedded market through a generalized attack.
      Fuel prices have radically altered the economics, and some of the patents involved will be used in a new invention that will revolutionize the transportation industry.
      Details here:
      http://www.snopes.com/autos/business/carburetor.a s p [snopes.com]
      When you read that link, remember: False is the new True!

    • Re:The big problem... (Score:5, Interesting)

      by ushering05401 ( 1086795 ) on Monday May 14, 2007 @07:59PM (#19124249) Journal
      Before Vista rolled out they had already dropped key functionality and pushed back the date.

      Viridian (MS Virtualization update for those not following along) was supposed to be released 4th qtr '06, but was pushed to '07 and they just announced that they are dropping promised functionality. I believe I read that some of that dropped functionality was designed to deal heavily w/multi-processor/multi-core technology.

      360 is popular but makes no cash. Zune is getting hammered.

      I would agree that their current strategy was formed before the general publc knew Vista was going to be a dog. MS has known it is in danger for quite a while. Not the same as actually being on the ropes for a company with as much market inertia as they have, but starting to look scary.

      They must have known their ship was taking on water long before the general public became aware.

      Regards.

      • Re:The big problem... (Score:4, Interesting)

        by Locutus ( 9039 ) on Monday May 14, 2007 @09:48PM (#19125169)
        as you pointed out, Microsoft has never been successful outside of software which could leverage the Microsoft Windows desktop pre-loads to grab marketshare. They must know this and though they still get billions flowing in through the MS Windows gravy train, their market growth areas are finding quite a nice home for Linux and OSS. And they know they can only keep re-feeding their existing customers just so much before even they start looking elsewhere for a cheaper solution.

        Think of the reaction Earnie Ball had when the BSA came and found a handful of illegally installed apps. There are also examples of what a number of school districts did when the BSA and Microsoft hammered them in attempts to force them into new and expensive licensing contracts.

        So they are "taking on water" but will these extortion/patent threats just send a few customers overboard or will there be an abandoning of the ship when it is shown that they can not take this to the courts without a massive reciprocation?

        LoB
    • DUDE! You suck! why would you tell us that!? Did we eat your children or something..... not kewl -Seething pile of Man-Anger

  • Like McCarthy holding up an envelope (Score:5, Insightful)

    by cavehobbit ( 652751 ) on Monday May 14, 2007 @07:25PM (#19123835)
    MS likely has as many patent violations in its secret list as McCarthy had Communist names on his.

  • So how can MSFT proceed if they don't list them? (Score:5, Insightful)

    by cdrudge ( 68377 ) on Monday May 14, 2007 @07:26PM (#19123839) Homepage
    Sure Microsoft can go after companies with legal threats, but ultimately the patents would have to come out. You can't sue and not be prepared for the information to become public. There was a little software company in Utah that is finding this out. Is this just SCO vs. IBM where SCO has been replaced by a much bigger company that isn't going to run out of money in 5 years?

    • Re:So how can MSFT proceed if they don't list them (Score:4, Insightful)

      by grasshoppa ( 657393 ) on Monday May 14, 2007 @07:32PM (#19123909) Homepage
      Sure Microsoft can go after companies with legal threats, but ultimately the patents would have to come out. You can't sue and not be prepared for the information to become public. There was a little software company in Utah that is finding this out.

      It's been 4 years since this came out. SCO didn't have any facts to put into the case, and it's still banging around after 4 years. The only thing that will really limit them is their bankroll, which is running out.

      MS has a much larger bank roll.

      • Re:So how can MSFT proceed if they don't list them (Score:5, Interesting)

        by 644bd346996 ( 1012333 ) on Monday May 14, 2007 @09:36PM (#19125071)
        There are plenty of reasons why MS wouldn't be able to stall as long as SCO, and I'm sure MS knows that. That's why they've been using SCO so far, instead of doing it all directly.

        Think about it. If MS were to actually start suing Linux users, it would make the front page of most newspapers in the US. The last time Microsoft was that involved in legal disputes in the US, it took a presidential impeachment to distract the public and the press. Microsoft would be under far more scrutiny than SCO, and the truth about their baseless claims would come out. By the time the dust settled and the judges dotted all the i's and crossed all the t's, precedents would have been established that would destroy Microsoft's core business practices. And because of the importance of the case(s), all the Fortune 500 companies would be demanding a speedy trial so that they could get on with running a business.

        The more MS stalls, the more solid the case against them will be. If they come up with an excuse, it will be analyzed and probably debunked quickly, leaving them with fewer options. If they don't dig up every technicality they can think of, then they will lose sooner. The only option they have now to avoid inevitable humiliation in court is to stay out of court. Unfortunately for them, their FUD alone might provide enough grounds for somebody else to sue them, thus setting up the showdown they can't afford to have happen.

        One thing is certain: once MS gets into court about these issues, they won't get to decide when they leave (just like SCO cannot drop charges and walk away). That makes it a huge risk for them to ever get near a court with their FUD.

        And then, there is always the fact that IBM's Nazgul could beat the shit out of Microsoft with their all-encompassing Patent Portfolio. That might actually be the best delaying tactic: get into long fights with IBM, and make sure the real cases can't proceed until they are settled.

    • Sure Microsoft can go after companies with legal threats, but ultimately the patents would have to come out. You can't sue and not be prepared for the information to become public. There was a little software company in Utah that is finding this out. Is this just SCO vs. IBM where SCO has been replaced by a much bigger company that isn't going to run out of money in 5 years?

      They'll keep threatening that Linux opens your company to patent violations and lawsuits until they've milked it dry. Then when companies stop listening (if this ever happens; I doubt it would) and start using Linux, they'll start suing a few until the companies buy the newest Microsoft product. Then the Linux community will fix the patent violations in a day or two...but it will be too late, and companies will be afraid again that there are more violations and will stop using Linux...

      They'll be able to re

  • Now that the SCO case is tanking .,.. (Score:5, Insightful)

    by jms ( 11418 ) on Monday May 14, 2007 @07:27PM (#19123855)
    Translation:

    The SCO vs IBM assault (funded by Microsoft) is about to implode.
    Therefore, Microsoft is poised to move on to their next strategy of
    attacking free software.

    • Re:Now that the SCO case is tanking .,.. (Score:5, Interesting)

      by mcrbids ( 148650 ) on Monday May 14, 2007 @08:19PM (#19124415) Journal
      "First they ignore you,

      then they ridicule you,

      then they fight you,

      then you win." -

      -- Mahatma Gandhi

      Seriously, Microsoft is getting ready to pull off their kid gloves, now. They are really, truly, in a rather scary position.

      1) Their flagship product, Microsoft Windows, is selling very softly. Word on the street is "don't buy until Service Pack 1, at least". (Told to me by our local computer store, I might add) Dell has reverted to Windows XP. Lots of public institutions are making very public noises about switching to alternatives, such as Ubuntu. What's worse is that some are actually doing it, and it's working. Apple OSX is ballooning. People are sick of viruses and dumb security alerts. The cost of supporting Windows clients has been rising almost exponentially as the number of band-aids required to keep a Windows system running has exploded. Anti-virus, Anti-spyware, Firewall, Malicious Software Removal kit, r00tkit detectors, frequent software updates, it's just getting to be too much for any reasonable non-technie to manage.

      2) Their next big product, Microsoft Office, is similarly under heavy assault. The Massachussetts ODF debacle brought to the forefront the basis of Microsoft's lock-in, and jurisdictions are switching rapidly to ODF, PDF, and other open formats. Just today, we saw Norway joining the fray [slashdot.org].

      3) Their big ace in the hole is the Windows API. [joelonsoftware.com] But they're losing that on several fronts:

      3A) The Windows API is the cause of many security problems, since it's a buggy, insecure, festering pile.

      3B) Even so, it's being emulated, warts and all [winehq.org] with increasing effectiveness with the WINE codebase.

      3C) Lastly, it's just not as relevant anymore. New apps today are commonly web-based, partly to avoid the problems inherent in client-side software.

      Case in point: I had a school contact me JUST TODAY and ask if our product (normally Windows/Mac) would work with WINE. (No need for WINE - it's GTK-based)

      4) They've almost completely failed to diversify their product line despite trying for over 10 years to do so. They have other, profitable products, but the amount earned by MSN and Xbox is a pittance compared to what Windows and Office earn for them.

      So why wouldn't they fight back with whatever they have? They're SCARED SILLY. They have BILLIONS of dollars in their war chest, and their revenue stream might be flat, but there's still an INSANE amount of cash available. They won't take this lying down, folks.

      Get ready for the fight of your lives - this will make SCO look like yesterday's donuts.

      • Re:Now that the SCO case is tanking .,.. (Score:4, Insightful)

        by wrook ( 134116 ) on Monday May 14, 2007 @09:44PM (#19125129) Homepage

        "First they ignore you,

        then they ridicule you,

        then they fight you,

        then you win." -


        ????



        then you profit



        Just kidding. I have my own view of this quote. I personally believe that the key to this strategy is the "then they fight you" part. In the case of Gandhi, you had a bunch of well armed British soldiers brutally killing poor Indian people for very nebulous reasons.



        He correctly surmised that the easiest way to fight this battle was simply to make people aware of it. Generally speaking, people consider themselves good. They won't allow that kind of injustice to continue if they are not able to turn away from it.



        But understand that in order to win this war, people had to die. They didn't just sit around say "Ha ha! We're going to win because you fight us". To Gandhi, the people who peacefully refused to accept British rule were soldiers. And soldiers die.



        To bring this back to Free software, can we use this tactic? First, if we do, we become soldiers. And soldiers die. Do we believe in our cause enough to die (at least an economic death)? Second, if we are slaughtered by the likes of Microsoft, will anyone care -- even if they are forced to watch? And how will we force/entice them to watch? 200 poor people getting gunned down by well armed soldiers is newsworthy. Joe Blow getting sued out of existence for patent infringement may not be quite so interesting to the average person.



        I truly believe that the best and only way to win this battle is to make it matter to the average person. And to do this we must write software. Good software. Software that people *want* to use. If 200 million people are denied the ability to use their favorite programs, then something will break. Then it will be news that the average person will want to read about.



        Then they will join us.



        Then we will win.



  • Department of Redundancy Department (Score:5, Interesting)

    by Scottoest ( 1081663 ) <scottNO@SPAMbampage.com> on Monday May 14, 2007 @07:31PM (#19123901) Homepage
    I know this is Slashdot and everything, but at what point do the Microsoft stories become redundant?

    Yesterday there was a link to a story on this issue, followed by lots of discussion as to why Microsoft is doing what they are doing. Today there is an opinion piece regarding the original story, in which someone lays out unsubstantiated brainstorms, all of which were covered yesterday.

    I understand that Microsoft stories are huge traffic and comment generators on this website (any MS story is a guaranteed 300+ comments), but often times it seems as though the editors like to fuel the fire.

    I don't know. Just thinking out loud...

    - Scott

  • But they have to (Score:3, Informative)

    by CaptainCarrot ( 84625 ) on Monday May 14, 2007 @07:32PM (#19123907)
    They can't avoid it forever though, and they need to do it before any lawsuits they bring go very far. It's a requirement that a patent holder claiming infringement inform infringers exactly how they are doing that. Refusal to do so is considered a bad faith act on the part of the plaintiff, which is a serious strike against any damages they might want to claim.

  • Pull over, you've just broken 235 traffic laws... (Score:5, Insightful)

    by The_Sledge ( 1049070 ) on Monday May 14, 2007 @07:33PM (#19123913)
    Imagine this, you get pulled over by the cops, they say you've broken 235 traffic laws, but won't tell you exactly what you've infringed. Ridiculous.

    When someone points out a mistake I made, I appreciate when they tell me exactly what it was, or tell me where to look if it's in my best interest to learn how to be more diligent with my work. I don't suffer fools, and being a smart-ass doesn't help.

    What MS is doing is simply saying "hey you guys, there are 235 things you're doing that's going to get you in trouble, but we won't tell you what it is"

    Will it make us go away? It has definitely incensed a bunch of us to either be even more anti-MS in our stance at their sword waving, (hopefully we can do the Indiana Jones thing from Raiders')

  • Equitable Estoppel or Laches? (Score:5, Interesting)

    by earthforce_1 ( 454968 ) <earthforce_1&yahoo,com> on Monday May 14, 2007 @07:38PM (#19123975) Journal

    IANAL, but I have some small knowledge of the law in this area...

    If MS has knowledge that their patents are being violated, yet refuses to tell the violators exactly what patents they are violating and how, aren't the patent claims automatically nullified, since they made no good faith attempt to resolve the situation? If Linus or the OSDL contacts Microsoft and are rebuffed when they formally requests details of the patents in question and how they are being infringed, I would expect they would be laughed out of the courtroom in the best case. At worst, this might be viewed as a thinly diguised extortion attempt.

    This is sort of like delivering a copyright infringement notice to a website without telling them what the infringing material is, and demanding the entire site be shut down or pay the claimants whatever they see fit.
    • They will tell people which patents are being violated -- when they send cease & desist letters or file a lawsuit. There might be a case of laches, but it won't become a defense unless MS actually fails to sue for awhile for no good reason. We'll have to wait and see on that count -- they've got six years [cornell.edu] to file, although laches may cut into that. Equitable estoppel won't apply unless MS sends C&D letters to individuals or companies, instilling the apprehension of an imminent lawsuit, and THEN fails to sue, leading the company to (reasonably) assume that MS was just bluffing. AFAIK, MS hasn't sent any letters yet, they're just posturing.

      On the other hand, MS may have "used in commerce any ... false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of ... another person's goods, services, or commercial activities." See here [cornell.edu]. Note to /. geeks: learn the words "Lanham Act [wikipedia.org]" and "unfair competition." Oh wait, MS would never be guilty of unfair competition, what am I thinking...

  • Begun this patent war has (Score:5, Insightful)

    by jmorris42 ( 1458 ) * <jmorris@@@beau...org> on Monday May 14, 2007 @07:42PM (#19124021)
    We all knew this day would probably come, just as soon as the usefulness of the SCO lawsuit ended. Guess this means Microsoft has decided SCO is no longer enough to scare people off.

    It also means they have decided the odds of getting Europe to adopt software patents had become too low for it to make sense on holding their fire any longer. Because this will almost certainly put the pro patent forces in the EU on defense while everyone decides that waiting to see how this afair shakes out is the prudent course.

    It also means they feel threatened. Now normally that would be sorta good news, but Microsoft is paranoid and fearful as a matter of policy, always afraid of being knocked off their perch. They never choose to wait and 'hope for the best' when attack is an option for dealing with any real of imagined competitive threat. I suspect the only reason they have held their fire for so long was they felt they could use SCO to buy time to come up with a better plan that risking a Patent War that will have unpredictable results.

    But SCO is used up and they only came up with the one twist to a plain patent fight, the Novell deal. It a) takes Novell out of the fight and b) offers an escape path for any corporation who decides the risk is too great, just throw Novell money and opt out of the fight. It will probably clear the field of everyone except the principles, which was the plan. Before it is over we will be following, at a minimum, RedHat V Microsoft, probably IBM v Microsoft and since this will probably trigger another anti-trust action we will also get DOJ v Microsoft.

  • How will the major players respond? (Score:3, Interesting)

    by jonwil ( 467024 ) on Monday May 14, 2007 @07:45PM (#19124057)
    If this turns into more than just FUD and we see actual legal documents flying around, how will the various major players respond?

    Specifically, I wonder how the following organizations will react:
    IBM (big in Linux these days)
    Dell (Given the timing one has to wonder if the new announcements by Microsoft are designed in part to kill the Dell Ubuntu machines)
    RedHat
    Sun
    Free Software Foundation (have Microsoft made any claims that FSF software infringes on their patents yet)
    Motorola, Cisco, Linksys and others who are using linux on embedded devices

    The big question is who is going to keel over and stop using linux, who is going to "cut a deal" with Microsoft (IBM for example may just engage in some kind of cross license deal rather than try to fight) and who is going to fight?

  • will the Novell deal backfire? (Score:5, Interesting)

    by _|()|\| ( 159991 ) on Monday May 14, 2007 @07:45PM (#19124069)
    Pamela Jones has an interesting take [groklaw.net] on this story: now that Dell has bought some of the SLES coupons that Microsoft bought from Novell, Microsoft has effectively distributed a GPLed Linux distribution, thereby granting an implied license to any patents it may infringe.

    • Re: (Score:3, Insightful)

      by at_slashdot ( 674436 )
      Is this valid for GPLv2 too? I thought GPLv3 will bring a special clarification for this case.

  • Interesting speculation (Score:3, Funny)

    by HangingChad ( 677530 ) on Monday May 14, 2007 @07:54PM (#19124189) Homepage

    But a more optimistic thought is that Microsoft may be afraid to list these supposed violations because it knows the patents can be worked around by the open source community, leaving Microsoft high and dry without any leverage at all.

    Then why bluster with the threat? It makes them look like SCO and sound like the Iraqi Information Minister. We've got Super Secret IP! We will drive the Linsux invaders into the sea! There are no Linsux soldiers within 150 miles of Redmond! What kind of drugs is Ballmer on?

    Not to mention the scrutiny this case would get by the open source community. Nothing like having an army of volunteers. And you know MSFT actually suing someone would vault them into action.

    They trained on SCO, they're ready for the Redmond Death Cage Match.

  • It seems unfair (Score:4, Interesting)

    by kestasjk ( 933987 ) on Monday May 14, 2007 @08:21PM (#19124427) Homepage
    Microsoft can look for patent violations in Linux source code, but no-one can look for patent violations in Microsoft's source code. If you have a patent on the way an internal piece of software works you have no way of telling whether MS is breaking it, but they can tell whether Linux is.

  • SAMBA infringing on networking protocol patents? (Score:4, Insightful)

    by TheDarkener ( 198348 ) on Monday May 14, 2007 @08:22PM (#19124439) Homepage
    I would assume this is true, I've always wondered why M$ didn't go after the Samba team - I'm sure there are plenty of patents associated with specifics in protocols like SMB/CIFS.

    Personal note: I'd be glad to get rid of Samba in Linux - it would be a push in the direction of getting rid of M$ on the client/workstation side, which is a good direction. There are plenty of Linux servers in business, and if M$ made everyone stop using Samba, a lot of business owners would sooner replace the network filesharing protocol to something better like SSHFS, or something similar.

  • the only reason to be scared about this (Score:3, Insightful)

    by dAzED1 ( 33635 ) on Monday May 14, 2007 @08:52PM (#19124703) Journal
    validity of the patents? not really.
    Money MS has available? Nope.
    the tenacity of Ballmer? Ha.

    The real reason to worry is that the big thing the US still exports is...IP. We don't export televisions, computers, cds, dvds, toys, or anything else. We export how to make those things, what music and movies to put on the cds and dvds, etc. That is our largest remaining industry (since food is too cheap to make money off of really anymore).

    Part of me, therefore, worries that the feds will come HARD to the rescue of MS, because to do otherwise would be to give up a large part of the US IP. Not that MS is, by itself, such a thing...but it is certainly a figurehead for software patents, and the fall of MS would domino many other falls, all dramatically hurting the long-term export portfolio of the US.

  • Can Somebody Tell Me Why? (Score:3, Interesting)

    by Quantam ( 870027 ) on Monday May 14, 2007 @08:53PM (#19124711) Homepage
    The title pretty much says it all. WHY is MS doing this? No, "they're dumb as dog shit" and "Bill Gates is the antichrist come to bring tribulation upon the righteous [OSS people]" aren't valid answers. I could imagine that they're greedy, and perhaps even scared by open source. But WHAT rational reason does MS have to take this action? If they reveal the list, they better have one or two really good ones, because most will be either easily invalidated or quickly patched by the many, many Linux nerds worldwide (and Gord help them if IBM or some of the other giants step into the ring). If they don't reveal the claims, well, that'll make it impossible to sue (and IANAL, but some of the other comments suggested that some could call MS' bluff and put a stop to the spreading of FUD).

    At least MS getting SCO to pull a stunt like that (I have no comment on whether I think that's true) would make sense, as it wouldn't be any harm to MS; but time has shown the harm it's done to SCO, and I can't imagine MS would want to get into a losing fight like that, directly. Is there some way they could actually come out on top by this? I have a hard time believing people do things without a rational reason; now what is it?

  • The patent system wasn't created for this (Score:5, Insightful)

    by erroneus ( 253617 ) on Monday May 14, 2007 @09:00PM (#19124777) Homepage
    These tactics, if they can be proven as intentional (another halloween memo out there?), should be indication of their abuse of the patent system. Is it reasonable to expect every coder to search the entire patent system database for possible infringement before release to the public? I don't think so given the enormity of the database as it exists today. So their refusal to inform which patents are allegedly offending amounts to an abuse of the system ... by a monopoly power no less.

    Frankly, they shouldn't be allowed to continue their predatory and intimidating ways because they are a convicted monopolist. Where's the oversight?

  • End Game (Score:3, Interesting)

    by teh moges ( 875080 ) on Monday May 14, 2007 @09:19PM (#19124949) Homepage
    This whole move by Microsoft confuses me. Surely they would know that the Open source community would basically hit back with "Show us the code", "Your patents won't hold up in court" and "Whatever you have, we will work around it". My guess is that either: Steve Ballmer really is an idiot and doesn't understand what is happening, or that there is some other end game in this. I refuse to believe that such an idiot at least wouldn't be stopped by someone else in Microsoft's camp with a simple "Just think about it first", so my guess is that there is another end game.
    Yes, this is bad publicity for open source through mainstream media (as, like it or not, most people don't get their tech news from people that can program), and yes, this will scare some companies into buying MS software in their next cycle, but really... what is the end game?

    I saw an interesting comment here: http://neosmart.net/blog/2007/microsoft-linux-pate nt-violations/ [neosmart.net] that basically, MS's won't reveal the infringing source code because it will get traced back to MS agents. Either way though, it doesn't explain this.
    Like it or not, Microsoft, as a company, are as smart as they are evil. There is something else behind this.

  • Anti-trust (Score:3, Interesting)

    by BillGatesLoveChild ( 1046184 ) on Monday May 14, 2007 @09:40PM (#19125099) Journal
    Balmer's recent threats that anyone using a version of Linux that hasn't signed up with Microsoft an "undisclosed balance sheet liability" sums up Microsofts attitude nicely. Why wouldn't it? The DOJ has been muzzled and Microsoft have been able to do anything they damned well want to, but by the end of this year there will be someone else in the Whitehouse. Maybe it'll be same-as-usual. Maybe not. I hope not :-) PS. Microsoft Astroturfers respond to NUL: pls

  • Obligatory 300 quote (Score:5, Funny)

    by steveoc ( 2661 ) on Monday May 14, 2007 @10:16PM (#19125343)
    In the beginning:

    When this linux-child was born, like all Spartans, he was inspected.

    For the strength of the code lies only in its openness.

    ---oOo---

    The Threat:

    Microsoft Messenger:
    Choose your next words carefully, Leon-ix-idas. They may be your last as king.

    Linux:
    You bring the skulls and crowns of conquered corporations to my desktop, you insult my queen, and you threaten my people with lawsuits and FUD! Oh, I've chosen my words carefully, Microsoft. Perhaps you should have done the same! *kick*

    ---oOo---

    The preliminary skirmishes :

    Microsoft :
    Send in the SCOuts to test the strength of these Spartan defences.

    Linux :
    Our Unix ancestors built this wall. Using ancient stones from the bosom of Greece herself.
    And with a little Spartan help, your Microsoft-sponsored SCOuts supplied the mortar.

    ---oOo---

    The battle:

    Microsoft :
    A thousand lawyers of the Microsoft empire descend upon you. Our patents will blot out the sun!

    Linux :
    Then we will code in the shade !

    ---oOo---

    The aftermath:

    Narrator:
    The world will know that freemen stood against a tyrant, that few stood against many,
    and that before this battle is done, that even a god king can bleed.

    Microsoft:
    WTF happened ? Who threw that chair ?

  • Not limited to Linux (Score:3, Insightful)

    by DECS ( 891519 ) on Monday May 14, 2007 @10:21PM (#19125379) Homepage Journal
    "Among the patents infringed upon are 45 that apply to OpenOffice and 83 that apply to FOSS applications that are not part of the Linux kernel or its commonly associated graphical interface.

    This isn't just an attack on Linux, it's an attack on open source development in general. That is a spectacularly bad idea for Microsoft to pursue."

    Microsoft's Unwinnable War on Linux and Open Source [roughlydrafted.com]

  • Because there aren't any (Score:3, Interesting)

    by radtea ( 464814 ) on Monday May 14, 2007 @10:36PM (#19125479)

    I continue to be amazed that anyone is taking this seriously. There are ZERO MS patents violated by free software. If MS says otherwise, SHOW US THE PATENTS. If you won't do that, shut up and go home.

    The only answer to anyone making such outrageous claims is to ask them, "Which patents?"

    Imagine the following conversation:

    Company: "You have 112 unpaid invoices."

    Human being: "What are the invoice numbers?"

    Company: "We won't tell you."

    Human being: "Then how am I supposed to pay them?"

    Company: "You aren't. We're just going to threaten you with them until we do what we want."

    Human being: "...?"

    That is exactly what MS are saying: you owe us, but we won't tell you why or how much. Now pay up.

    As a Linux user, I'm wondering if I should contact MS demanding to be notified of exactly what patents are violated by software in the Ubuntu 7.01 and Slackware 11.0 distros. As a concerned citizen I am most desirous that I not use any violating software, but unless I know a) what the software in question is and b) what the patent it violates it is, I have no way of independently verifying that it is infringing. Therefore, unless they can provide me with evidence NOW that the software I am using is infringing, I will consider them estopped from ever enforcing their patents.

    I'm not a lawyer and not sure if the doctrine of estopel applies, but I'm pretty sure if we all send registered letters to MS asking for immediate notification as to a) what software is violating MS patents and b) what specific patents each specific piece of software is violating that we can all plausibly claim, in the absence of an answer, that MS has no further claim on us with regard to this.

    Anyone know the address of the MS legal department?

  • Some Violations (Score:3, Funny)

    by Tablizer ( 95088 ) on Tuesday May 15, 2007 @01:20AM (#19126603) Journal
    * Smiley's resemble a side-ways MS-Bob ":-)"
    * When a Linux box crashes (it sometimes happens), it violates MS's BSOD patent.
    * They have a patent on sloppy icons that leak colors thru.
    * Hilighting of misspelled words in word processors. IBM had it first, but they stick it on the list anyhow hoping IBM won't care.
    * When you use any paper-clip, real or virtual...
    * The figure "8" on the keyboard looks like MS-Bob's glasses.
    * Keyboards shipped with some Linux boxes have the Windows key on the keyboard.
    * The Malinda Gates Foundation patented Aids, so Linux users with Aids have to pay up.
    * If your Linux box is near land with grassy, rolling hills, you're violating their wallpaper.
    * The angle of the envelope in the mail icon is 27.43 degrees, exactly the same as in Windows.
    * The parenthesis on the DOS prompt font look too much like angle brackets, so if Linux uses angle brackets, it is violating their parenthesis patent out of association (a complex legal pathway that would take too long to explain to mortals).
    * "Linux" has the letter "n" near the middle of the word, just like "Windows". And an "i".
    * The mascot Penguin's smile looks just like MS-Bob's smile: smug and stupid.
    * Boring packaging is an MS innovation.
    * If you mow your lawn and find your car, you know you are a redneck. Oops, wrong list.
     

  • it's both (Score:3, Informative)

    by nanosquid ( 1074949 ) on Tuesday May 15, 2007 @01:43AM (#19126737)
    Well, many of the patents probably have ample prior art. In addition, almost certainly pretty much all of them can be worked around.

    How do we know that they can be worked around? Because the lifetime of patents is about 20 years. What did people use 20 years ago? UNIX workstations with colorful graphical user interfaces. They were doing desktop publishing, WYSIWYG editing, spreadsheet calculations, visual development, diagramming, E-mail, file up/downloads, chatting, VoIP, video conferencing, discussion boards, news reading, and all the other things people do today. There was C, the beginnings of C++, Objective C, several Java-like languages, several scripting languages, and Ingres. There were great IDEs (better than Eclipse or VisualStudio). The biggest changes since then have been the use of HTTP (replacing much of the functionality of NNTP and a few other protocols), the bloating of C++, theming, and window transparency in X11. Oh, and lots more memory, CPU, and bandwidth.

    Whatever Microsoft may or may not have invented over the last 20 years, it's clearly not essential to modern desktop computer usage because modern desktop computer usage existed when Microsoft was still doing DOS.

    IANAL, but it seems to me that FOSS projects should contact Microsoft's legal department with something like this: "Dear Microsoft, our project takes intellectual property seriously and we have a policy of not infringing patents. You have recently claimed that our project infringes upon some of your patents. We have examined our code and been unable to determine where this infringement occurs and we believe that our software does not infringe. We would appreciate if you could let us know specifically which patents and claims our code infringes according to you so that we can find a solution. Since you have already counted the number of instances, it should be easy for you to generate such a list." Send it with return receipt. I think if they don't respond, if they ever brought a claim, even though they are not strictly speaking required to respond, it would look quite bad for them.

    Alternatively, just take Microsoft to court and ask for a declaratory judgement. One doesn't have to take it all the way to the end, just far enough for Microsoft to actually be forced to put their patents on the table. At that point, you look at them, implement the workarounds, and say "you may be right, but it's fixed now".

  • Call the bluff (Score:4, Informative)

    by Spazmania ( 174582 ) on Tuesday May 15, 2007 @04:55AM (#19127595) Homepage
    A DRAFT Open Letter to Microsoft General Counsel Brad Smith

    Dear Mr. Smith:

    My name is ______. I am the maintainer for Linux kernel 2.6. I package its various components for general distribution.

    It has come to my attention that that you allege the Linux kernel infringes 42 Microsoft patents. It is my emphatic belief that the Linux 2.6 kernel infringes no intellectual properties, least of all Microsoft's patents. Nevertheless, I will rigorously investigate any bona fide infringement claim and take appropriate remedial action.

    Accordingly, I ask that you specify the 42 patents you allege to be infringed. Please include concise technical descriptions of the allegedly infringing components of the Linux kernel and the claims which you believe each component violates. For the sake of everyone's peace of mind, I ask that you do so no later than July 1, 2007.

    Until such a time as you have done so, I insist that you refrain from making further potentially slanderous remarks to members of the press regarding the legality of the Linux kernel and thus of my behavior as its maintainer.

    Respectfully Yours,
    X

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